No Such Thing as Wrongful Birth in Georgia

ATLANTA (CN) — A federal judge in Georgia dismissed a Texas couple’s complaint against a Georgia sperm bank, though the sperm donor was not a highly educated man, as promised, but a mentally ill college dropout with a criminal record.

Rene and Trayce Zelt sued Xytex, a Georgia corporation, claiming it led them to believe that the semen used to conceive their two children came from a highly educated donor.

The Zelts claim that after their children were born they discovered through an internet search that the sperm donor, James Aggeles, had “filled out his [donor] application falsely by inflating his educational background and lying about his mental health history,” U.S. District Judge Thomas Thrash Jr. wrote in his Feb. 22 order.

Despite Xytex’s claim that it subjected sperm donors to “a rigorous qualification procedure that takes months to complete, including a medical review and regular updates to their medical and criminal histories, Aggeles was approved as a donor within two weeks,” Thrash wrote.

He continued: “The complaint alleges that Aggeles was only given a ten-minute physical examination, during which no physical or mental health history was discussed. After Aggeles was approved as a sperm donor, he was hospitalized numerous times for mental health reasons, and was arrested on numerous occasions.”

The Zelts, a same-sex couple, claimed that a Xytex employee had told Aggeles that highly educated donors have more success selling their sperm. So Aggeles claimed to be working toward a Ph.D. in artificial intelligence, though in fact he had dropped out of college, been diagnosed with psychotic schizophrenia and narcissistic personality disorder, and pleaded guilty to residential burglary in 2005.

Nonetheless, from 2000 through 2016, “Aggeles became one of Xytex’s most popular donors,” Thrash wrote.

“During those years, Aggeles became the biological father of at least thirty-six children through Xytex’s sale of his sperm, including the plaintiffs’ two children.”

The Zelts said they would not have conceived and borne their children had they known about Aggeles’s history.

Thrash said that is precisely why he dismissed their claims of fraud and negligence — because the claims are “derivative of a wrongful birth action,” which Georgia “disfavors.”

“The reason why Georgia courts have looked on wrongful birth claims with disfavor is not because of the timing of the tort or the causal link between the defendant and the harm. The true difference between the two torts is the measure of damages,” Thrash wrote. “Wrongful birth claims are disfavored because they require the court to decide between the value of a life with disabilities and the value of no life at all. The Georgia courts are ‘unwilling to say that life, even life with severe impairments, may ever amount to a legal injury.’ In this case, the plaintiffs essentially claim that had the defendants been truthful with them about Aggeles’s history, they would not have used his sperm and their children would not have been born.”

Thrash cited Atlanta Obstetrics & Gynecology v. Abelson, a 1990 Georgia Supreme Court ruling that “wrongful birth” could not be recognized as a cause of action in Georgia courts, but should be left to the Legislature.

Therefore, Thrash ruled, “The Legislature, and not this Court, is the proper forum for addressing the allegedly negligent or reckless failure of sperm banks to screen sperm donors.”